Between Incidenter Review and Preliminary Reference: Work in Progress. The essay discusses Italian Constitutional Court decisions 269/2017 and 20, 63, 112, 117/2019 on the question of double «incidentality». This situation emerges when a preliminary reference is sent to the CJEU, at the same time as a question of unconstitutionality is referred to the national Constitutional Court. The essay argues that the Italian Court has been trying to regain a right of first word on questions of human rights protection in its incidenter proceedings. When read together, these decisions may suggest at least three conclusions: i) the role of the Constitutional Court keeps shrinking while the prerogatives and role of ordinary judges, thanks to the preliminary reference, keep increasing; ii) conflict between national Constitutions and the European Charter of Fundamental Rights may also increase; iii) through the doctrine of direct effects, some judges may be tempted to force the monopoly of the Con- stitutional Court on questions of legitimacy of ordinary laws. These scenarios may bring about the ultimate displacement of the central role of the Constitu- tional Court in the judicial review of ordinary laws with respect to fundamen- tal rights. It is in order to resist these scenarios that the foregoing decisions of the Italian Court seem to have overruled the Granital jurisprudence.

Tra incidente di costituzionalità e rinvio pregiudiziale: lavori in corso

Tega Diletta
2019

Abstract

Between Incidenter Review and Preliminary Reference: Work in Progress. The essay discusses Italian Constitutional Court decisions 269/2017 and 20, 63, 112, 117/2019 on the question of double «incidentality». This situation emerges when a preliminary reference is sent to the CJEU, at the same time as a question of unconstitutionality is referred to the national Constitutional Court. The essay argues that the Italian Court has been trying to regain a right of first word on questions of human rights protection in its incidenter proceedings. When read together, these decisions may suggest at least three conclusions: i) the role of the Constitutional Court keeps shrinking while the prerogatives and role of ordinary judges, thanks to the preliminary reference, keep increasing; ii) conflict between national Constitutions and the European Charter of Fundamental Rights may also increase; iii) through the doctrine of direct effects, some judges may be tempted to force the monopoly of the Con- stitutional Court on questions of legitimacy of ordinary laws. These scenarios may bring about the ultimate displacement of the central role of the Constitu- tional Court in the judicial review of ordinary laws with respect to fundamen- tal rights. It is in order to resist these scenarios that the foregoing decisions of the Italian Court seem to have overruled the Granital jurisprudence.
2019
Tega Diletta
File in questo prodotto:
Eventuali allegati, non sono esposti

I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.

Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11585/696095
 Attenzione

Attenzione! I dati visualizzati non sono stati sottoposti a validazione da parte dell'ateneo

Citazioni
  • ???jsp.display-item.citation.pmc??? ND
  • Scopus 6
  • ???jsp.display-item.citation.isi??? ND
social impact